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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of: )
)
SAH Acquisition Corporation II )
)
vs. ) CSR-5267-M
)
Orwell Cable TV Co. )
)
Request for Mandatory Carriage )
of Television Station WOAC-TV, )
Canton, Ohio )
MEMORANDUM OPINION AND ORDER
Adopted: October 30, 1998 Released: November 4, 1998
By the Acting Chief, Consumer Protection and Competition Division, Cable Services Bureau:
1. SAH Acquisition Corporation II ("SAH"), licensee of television broadcast station WOAC-
TV, Canton, Ohio ("WOAC-TV" or the "Station"), has filed a must-carry complaint with the Commission,
pursuant to Sections 76.7 and 76.61 of the Commission's rules, claiming that Orwell Cable TV Co.
("Orwell") has failed to commence carriage of WOAC-TV on Orwell's system serving Orwell, Ohio and
the surrounding areas (the "cable communities") as required by Section 614 of the Communications Act
and Section 76.56 of the Commission's rules. Orwell filed an opposition, and SAH filed a reply.
BACKGROUND
2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by
the Commission in Implementation of the Cable Television Consumer Protection and Competition Act of
1992, Broadcast Signal Carriage Issues, ("Must Carry Order"), commercial television broadcast stations
are entitled to assert mandatory carriage rights on cable systems located within the Station's market. A
station's market for this purpose is its "area of dominant influence," or ADI, as defined by the Arbitron
audience research Organization. An ADI is a geographic market designation that defines each television
market exclusive of others, based on measured viewing patterns.
SUMMARY OF ARGUMENTS
3. WOAC-TV asserts that it is entitled to mandatory carriage on Orwell's Orwell, Ohio, cable
system because WOAC-TV is a qualified local commercial station as defined under the Commission's
must-carry rules. WOAC-TV explains that it is licensed to Canton, Ohio, which is in the Cleveland ADI.
WOAC-TV states that Orwell operates a cable television system serving Orwell and the surrounding areas,
which also are within the Cleveland ADI. WOAC-TV contends that because it is located within the same
ADI as Orwell, it is entitled to carriage. WOAC indicates that it informed Orwell of its must-carry
election in October, 1996, and asserts that it requested mandatory carriage on the Orwell system in a letter
dated March 27, 1998. WOAC-TV claims that Orwell did not respond to the March 27th letter in
violation of Section 76.61(a)(2) of the Commission's rules, which requires cable operators to respond in
writing to requests for carriage within 30 days of such requests. SAH requests that the Commission order
Orwell to commence carriage of WOAC-TV's signal on channel 67 of the cable system serving the cable
communities.
4. In opposition, Orwell recognizes that it has been formally asked to carry the WOAC-TV
signal, but contends that it has good reasons for not carrying the WOAC-TV signal on the Orwell system
in question. Orwell argues that the instant Complaint is "procedurally premature," and "not ripe for FCC
intervention." Orwell states that it was surprised by the Complaint because WOAC-TV filed it without
first notifying Orwell of any alleged failure to carry the Station's signal, or to identify WOAC-TV's
reasons why it believed Orwell was obligated to carry the Station's signal on the cable system in question,
as required by Section 76.61(a)(1) of the Commission's rules and Section 614(d)(1) of the
Communications Act of 1934, as amended. Orwell asserts that the Complaint was the first indication
to Orwell of WOAC's discontent for the non-carriage of the Station's signal on the Orwell cable system.
Orwell maintains that the provisions of Section 76.61(a)(1) were designed to protect cable operators from
being surprised by a broadcaster filing a must-carry complaint without first giving them any notice.
5. Orwell explains that, using "good engineering practices," it measured the strength of the
signal WOAC-TV delivers to the Orwell headend. Orwell points out that the signal measured -
44.75dBm, and argues that the signal "barely" meets the technical requirements of Section 76.55(c)(3) of
the Commission's rules, which conditions mandatory carriage on a broadcaster's ability to deliver a signal
of good quality to the cable operator's principal headend. Orwell argues that even if WOAC-TV is
entitled to mandatory carriage because it delivers a signal that "reaches the statutory minimum by a hair,"
the subject matter of the instant Complaint should be resolved by the interested parties and not the
Commission.
6. In reply, WOAC-TV, noting Orwell's own signal strength test results, points out that
Orwell has conceded that the Station delivers a good quality signal to the Orwell headend, and reiterates
its earlier arguments that the Station meets the Commission's technical standards for mandatory carriage
on the system in question. WOAC-TV notes that even though Orwell maintains that it has "good reasons"
for not carrying the WOAC-TV's signal on its Orwell headend, it has failed to enumerate those reasons.
WOAC-TV maintains that no element of surprise was involved in its decision to file the instant Complaint.
Rather, WOAC-TV asserts, such filing was the next procedural step, pursuant to Section 76.7(c)(4)(iii),
following Orwell's failure to respond to the Station's March 27, 1998 mandatory carriage request. Finally,
WOAC-TV disagrees with Orwell's conclusion that this Complaint is not ripe for FCC intervention.
DISCUSSION
7. We grant WOAC-TV's carriage complaint against Orwell Cable TV Co. We disagree with
Orwell's conclusions that the instant Complaint is premature, and not ripe for FCC intervention, or that
WOAC-TV's filing of the Complaint came as a surprise to Orwell. Contrary to Orwell's assertions, we
find that WOAC-TV's must-carry Complaint is properly before us; its filing was triggered by Orwell's
failure to respond to WOAC-TV's March 27, 1998 letter requesting mandatory carriage. On that date,
WOAC-TV reminded Orwell that the Station had elected mandatory carriage in October, 1996, and
inquired about Orwell's reasons for not carrying WOAC-TV on the Orwell cable system. We find that
the March 27th letter complied with Section 76.61(a)(1) of the Commission's rules. WOAC-TV notified
Orwell of its belief that, based on the October, 1996 must-carry election notification, Orwell had failed
to meet its carriage obligation, and stated the reasons for believing that Orwell is obligated to carry the
WOAC-TV signal on its Orwell system.
8. Section 614(a) of the Communications Act requires cable operators to carry the signal of
local commercial television stations unless the stations fail to deliver a good quality signal to the cable
system's principal headend; the station's signal substantially duplicates the signal of another local
commercial station which is carried on the system; or the cable operator (with a system of more than 12
usable activated channels) has already allocated up to one-third of the aggregate number of its usable
activated channels to other local commercial stations. A local commercial television station is defined
as any full power broadcast station that is within the same television market as the cable system. Here,
we find that WOAC-TV qualifies for carriage on the cable system in question, not only because it is
located in the same ADI as Orwell, but also because it delivers a good quality signal to the Orwell
headend, pursuant to Section 76.55(c)(3) of the Commission's rules, which provides that an UHF
television broadcast station, able to deliver a signal level of -45dBm to a cable system's principal headend,
is entitled to mandatory carriage on that system. Our finding is supported by the results of the signal
strength testing conducted by Orwell, which clearly show that WOAC-TV meets the statutory minimum
technical standard for mandatory carriage. The -44.75dBm signal level delivered by WOAC-TV to the
Orwell headend, which is slightly better than the statutory minimum of
-45dBm, is not an impediment for its carriage.
9. Moreover, under the Commission's must-carry rules, cable operators have the burden of
showing that a commercial television station located in the same television market as the cable operator
is not entitled to carriage. In the instant case, Orwell has not met this burden. Instead, Orwell's own
testing has determined that WOAC-TV meets the statutory minimum technical requirements for carriage.
And, although Orwell claims to have "good reasons" for not carrying the WOAC-TV signal on its Orwell
system, it has failed to name or explain them.
10. Finally, concerning WOAC-TV's channel positioning request, we find that it has properly
requested carriage on channel 67 on Orwell's cable system, the same channel number on which it is
broadcast over-the-air. Under our rules, cable operators must comply with the channel positioning
requirements absent a compelling technical reason.
ORDERING CLAUSES
11. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of
1934, as amended (47 U.S.C. 534), that the complaint filed by SAH Acquisition Corporation II IS
GRANTED. Orwell Cable TV Co. IS ORDERED to commence carriage of television station WOAC-
TV on channel 67 of its cable system serving Orwell, Ohio within sixty (60) days from the date of this
Order.
12. This action is taken pursuant to authority delegated under 0.321 of the Commission's
rules.
FEDERAL COMMUNICATIONS COMMISSION
Deborah E. Klein, Acting Chief
Consumer Protection and Competition Division
Cable Services Bureau